Peter Thomas Myers v Charles Claudianos Sca [1990] ACTSC 12; (1990) 100 FLR 362 (30 March 1990)

SUPREME COURT OF THE ACT

PETER THOMAS MYERS v. CHARLES CLAUDIANOS
S.C.A. No. 41 of 1989
Magistrate - Criminal Law
[1990] ACTSC 12; (1990) 100 FLR 362

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Magistrate - appeal by way of order to review - no case submission - question of law - distinguished from question of fact on submission that case has not been proved - need to assess prosecution case at its strongest on no case submission - whether Browne v. Dunn applicable.

Magistrate - dismissal of information - successful appeal by way of order to review - discretion to remit to Magistrates Court - application of rule against double jeopardy.

Magistrate - rules of natural justice - duty to act fairly - right of parties to be heard on questions of fact before decision made on facts.

Criminal law - "insider trading" - Security Industries Act 1980 - evidence of communication of price sensitive information.

R v. Bilick and Starke (1984) 36 SASR 321 at 337

May v. O'Sullivan [1955] HCA 38; (1955) 92 CLR 654

Kioa & Ors. v. Minister for Immigration and Ethnic Affairs & Anor [1985] HCA 81; (1985) 62 ALR 321

R v. Dorking Justices; Ex Parte Harrington (1984) 3 WLR 142

Browne v. Dunn (1894) 6 R 67

Allied Pastoral Holdings Pty. Ltd. v. Commissioner of Taxation (1983) 1 NSWLR 1

Vakauta v. Kelly (1989) 87 ALR 633

Howard v. Bondfield (1974) 3 ACTR 62

Milner v. Anderson (1982) 42 ACTR 23

HEARING

CANBERRA
30:3:1990

Counsel for the appellant Mr M. Weinberg, QC with Mr Chettle

Solicitors for the appellant Director of Public Prosecutions

Counsel for the respondent Mr T. Higgins, QC with Mr J. Briggs

Solicitors for the respondent: Blake Dawson Waldron

ORDER

The order nisi of 13 July 1989 be discharged.

The appellant pay the respondent's costs.

DECISION

This is the return of an order nisi for review of a decision of a Magistrate sitting in the Canberra Magistrates Court on 22 June 1989 dismissing certain charges brought against the respondent under the Securities Industry Act 1980 (the Act). Section 128 of the Act prohibits "insider-trading" in company securities and similar conduct. Section 129 makes such conduct an offence punishable in the case of a person not being a body corporate by a fine of $20,000 or imprisonment for 5 years or both. By sub-s. 35(1) of the Companies and Securities (Interpretation and Miscellaneous Provisions) Act 1980, an offence against the Act is punishable either summarily or on indictment.

2. The three informations alleged that the respondent committed the following offences in the Australian Capital Territory:
1. That between 10 April 1987 and 9 October 1987 at a time
when he was precluded by sub-s.128(2) of the Securities

Industry Act 1980 from dealing in the securities of
Rancoo Pty. Limited by reason of his being in
possession of information, he communicated that
information to another person, to wit John Claudianos,
at a time when trading in those securities was
permitted on the Melbourne Stock Exchange, and when he,
the said Charles Claudianos, ought reasonably to have
known that the said John Claudianos would make use of
the information for the purpose of dealing in the
securities of Rancoo Pty. Limited.
That was an offence against sub-s.128(5) of the Act.

2. That between 8 September 1987 and 9 October 1987 at a

time when he was precluded by sub-s.128(2) of the
Securities Industry Act 1980 from dealing in the
securities of Rancoo Pty. Limited, he procured another
person, to wit John Claudianos, to deal in those
securities.
That was an offence against sub-s.128(4) of the Act.

3. That between 8 September 1987 and 9 October 1987,

whilst being connected with Anutech Pty. Limited he
dealt in securities of Rancoo Pty. Limited when, by
reason of his connection with Anutech Pty. Limited, he
was in possession of information that would be likely
materially to affect the price of the securities of
Rancoo Pty. Limited and related to expected
transactions involving Anutech Pty. Limited and Rancoo
Pty. Limited.
That was an offence against sub-s.128(2) of the Act.

3. The Magistrate dismissed the informations after the close of the prosecution case, when senior counsel for the respondent submitted that there was no case to answer on any one of the charges. The Magistrate's decision was concerned essentially with the state of evidence relating to communication between the respondent and his brother, John Claudianos.

4. A full transcript of the evidence before the Magistrate was not before me and the Director of Public Prosecutions, who appeared for the appellant (the informant before the Magistrate), was content to argue the appeal on the Magistrate's reasons for judgment, some of the documentary exhibits and an extract from the written submissions of counsel appearing for the prosecution before the Magistrate. It was submitted by the Director of Public Prosecutions on the appeal that the Magistrate was in error in not holding that there was evidence of all matters which the prosecution was required to prove in relation to each of the three charges. It was further submitted that the Magistrate was also in error in making the decision that the charges had not been established beyond reasonable doubt, in circumstances where counsel for the prosecution had not had the opportunity to address the Magistrate on that question.

5. The evidence was capable of establishing certain facts, which may be regarded as primary facts. I summarise those primary facts.

6. At all material times the respondent worked as a research officer at the John Curtin School of Medical Research in the Australian National University. In February 1987 Anutech Pty. Ltd. (Anutech), a company established by the Australian National University to market the results of research, entered into an agreement with a company listed on the Melbourne stock exchange, Rancoo Pty. Ltd. (Rancoo), whereby Anutech was to carry out research into the AIDS virus and Rancoo was to advance substantial funds to Anutech for the purpose of that research. Some employees of the John Curtin School of Medical Research, including the respondent, were aware of this agreement but it was not a matter of general knowledge.

7. Some time prior to October 1987 the respondent learned through his employment that Rancoo intended to make a public announcement of a major breakthrough in research into a vaccine to combat the AIDS virus. It was expected that the announcement would be made in October 1987 and that the announcement was likely to boost the market value of shares in Rancoo.

8. At the relevant times the respondent had a brother living in Sydney, John Claudianos, who worked in a bank. The manager of his section of the bank was one Warren Hennessy. Another man, Graeme Broome, also worked there.

9. In mid-1987 the respondent told his wife and other members of his family that there was "a lot of money to be made on the stock exchange if you know what's happening", that there had been one press release on work done in the university which had resulted in a rise in the price of Rancoo shares, that "there will be another press release" and that he "would purchase shares prior to the release in order to make money". In early September 1987 the respondent and his wife visited John Claudianos in Sydney at the bank where he worked. On 29 September 1987 a brother-in-law of the respondent, Lars Daniel Burman, received a telephone call from the respondent in which the respondent suggested that "a nice profit was to be made" by purchasing shares in a company engaged in research into AIDS, and that for ethical reasons he, the respondent, was unable to buy those shares in his own name. He then told Burman that "John has checked it all out" and that "John had suggested my name" that is, that John Claudianos had suggested that the shares might be bought in the name of Burman. There were further discussions between the respondent and Burman over the name or names in which shares were bought or to be bought but it is unnecessary to refer to the evidence in detail.

10. On 30 September 1987 20,000 shares in Rancoo were purchased in the names of Savvas and Burman. The purchase orders were placed with a Melbourne stock broker by Warren Hennessy.

11. On 30 September 1987 the respondent told his wife that he had bought some shares in Rancoo "through John in Dan's name" and that "John has also purchased some shares in Savvas' name". (The respondent had a sister-in-law called Savvas.) He added that John had bought the shares through a broker in Melbourne, and that a person called Graeme Broome and others who worked at the same place as his brother John also bought shares. The respondent further told his wife that his brother would initially pay for the shares and deduct the price for them at the time of the subsequent sale of the shares.

12. On Thursday, 1 October 1987 the respondent told Burman that John Claudianos had bought shares in the name of Burman and "should make about $20,000". When Burman expressed his concern about his name being used for this purpose the respondent told him on 2 October that "everything's okay, the shares have been put in Nicki's name", Nicki being the wife of John Claudianos.

13. On Saturday, 3 October 1987 the respondent told his wife that there would be a press release on the following Thursday and that he "would go to Sydney on the Friday to be at John's place of work with John and the other boys watching what the shares will be doing". He added that he expected a huge profit.

14. On Tuesday, 6 or Wednesday, 7 October the respondent again told his wife that there was going to be a press release on Thursday. On Friday, 9 October the respondent left for Sydney and returned home the following Sunday evening.

15. On the evening of Monday, 12 October the respondent returned from work and said, "John is too greedy, you (sic) should have sold on Friday when it was high". Later in the same week the respondent told his wife that the shares had been sold.

16. In addition to the evidence which went to prove the facts outlined above, there was evidence which went to show that John Claudianos purchased shares at the time in question when the price was beginning to rise. Evidence was also given by Warren Hennessy, senior manager of the Treasury Department of the bank in Sydney where John Claudianos worked. He said that it was he who took the steps which effected the purchase of the shares through a stock broker in Melbourne. He did so, he said, after first hearing of Rancoo at a meeting with Graeme Broome and John Claudianos. After making his own enquiries about Rancoo, he made contact with John Claudianos, who advised him to purchase two lots of 5,000 shares each in the respective names of Savvas and Burman. There was no evidence of any communication between the accused and Hennessy.

17. Turning aside from the evidence, I now examine the nature of the prosecution case. The Magistrate correctly recognized it as a case based on circumstantial evidence, and early in his reasons he perceptively referred to the following passage from R v. Bilick and Starke (1984) 36 SASR 321 at 337:

"The case against the appellant Starke was
circumstantial in character. The same test is to be
applied to deciding a submission of no case to
answer in a case depending upon circumstantial
evidence as in a case depending upon direct
evidence, although the manner of its application
will be different. The question to be answered by
the trial judge - and the author points out that
there is no difference between a trial by a judge
and jury and a trial by a magistrate in a summary
court - is whether there is evidence with respect
to every element of the offence charged which, if
accepted, could prove that element beyond
reasonable doubt. Where there is direct evidence
of the actus reus and that evidence is capable of
supporting an inference of mens rea, there is a
case to answer except in the extreme case, as
perhaps of testimony which is manifestly
self-contradictory or the product of a disorderly mind,
envisaged by the Privy Council - this is a
reference to the decision of the Privy Council in
Haw Tua Tua v. Public Prosecutor - in which the
direct "evidence" is so incredible as to amount to
no evidence. Where the case is a circumstantial
or partly circumstantial case and therefore
depends on inferences, the question may be
expanded so that it becomes: On the assumption
that all the evidence of primary fact considered
at its strongest from the point of view of the
case for the prosecution, is accurate, and on the
further assumption that all inferences most
favourable to the prosecution which are reasonably
open, are drawn, is the evidence capable of
producing in the mind of a reasonable person
satisfaction, beyond reasonable doubt, of the
guilt of the accused?"

18. Before proceeding to analyse the evidence, the Magistrate referred to the defence submission that there was "inadequate evidence to indicate that the defendant had communicated anything at all to John Claudianos from the Australian Capital Territory". With the question posed in that way, that is by reference to "inadequate evidence", likely error is already indicated, but the term "inadequate evidence" may have been used loosely and in any event it raises the central point at issue which is further discussed and developed below. The Magistrate went on to analyse and summarise the evidence as I have further summarised it above. In relation to the evidence of Hennessy he said as follows:

"The effect of Mr. Hennessy's evidence is that it
was he who decided to invest in Rancoo as a result
of his own enquiries and that he initiated the
interest which led to the purchase of shares in
Rancoo by Mr. Broome and by John Claudianos.
There is no evidence from Mr. Hennessy to suggest
that Charles Claudianos was involved in any way in
his decision nor that he had received any information
from John Claudianos which may have been
received in turn from the defendant."

19. The Magistrate found that there was evidence that he should accept "at a prima facie level" that there was contact between the respondent and his brother in Sydney during the months of October and November, that they had "a reasonably close relationship", but the Magistrate found that "there was no evidence of any description" to suggest any business dealings between the two brothers. The Magistrate accepted that there was evidence that Charles and John Claudianos had discussed the proposed purchase of Rancoo shares by John for Charles, that John had suggested that they should be purchased in the name of Lars Burman, and that following that conversation John purchased 3,000 shares for Charles and other shares for other people. At p 13 of his reasons, the Magistrate stated that there was no direct evidence from anyone to suggest any communication between the respondent and his brother at any time. This statement is not quite correct, as the respondent's conversations with his wife and with Burman are admissions capable of establishing that there was such communication. Admissions are properly regarded as direct and not circumstantial evidence: see Cross, 3rd Australian Edition, paragraph 1.22. In any event, the Magistrate then went on to consider what inferences were "reasonably open on the evidence" which were reasonably capable of producing in the mind of a reasonable person satisfaction beyond reasonable doubt of the guilt of the accused. Whilst that was an impeccably correct test to apply, it was not in fact the test which was applied. At this stage of the Magistrate's reasoning there may be seen to occur a fundamental change of approach. Having scrutinized the evidence in order to see what material in it was capable of directly proving facts supporting the prosecution case, it was then the Magistrate's task to determine what inferences might be drawn which went also to support the prosecution case. However, the Magistrate was attracted to a consideration of another point altogether, namely whether some aspects of the evidence left him in doubt whether it was the respondent or his brother who "initiated" the proposal. He considered the evidence of Hennessy and concluded that it "goes against the inference that Charles Claudianos did in fact communicate the information to his brother as alleged".

20. The Magistrate then came to the critical decision in which he expressed himself thus:

"I am not satisfied however that there is evidence
at a prima facie level to show that the defendant
communicated any information he had to his brother
during the times set out in the charges."

Accordingly, he decided that the charge under sub-s.128(5) had not been made out. In relation to the charge under sub-s.128(4) he went on to say:

"As I have not been satisfied that there was in
fact any communication of the information, it
follows that I cannot be satisfied that the
evidence supports the allegation that the
defendant procured his brother to deal in those
securities. Accepting the evidence of
Mr. Hennessy and in the absence of any evidence
from John Claudianos or Graham Broome there is
nothing to suggest that Charles Claudianos played
any role at all in his brother's decision to buy
shares in Rancoo Ltd."

21. Finally, as the prosecution case on the charge under sub-s.128(2) had been confined by particulars to an allegation of an inducement, the Magistrate said in relation to that charge that there was "no adequate evidence either direct or from which proper inferences might be drawn to show that there was ever any communication between the defendant and his brother which passed on relevant information which induced John Claudianos to acquire securities of Rancoo Ltd."

22. The Director of Public Prosecutions submitted that in dealing with the question whether a prima facie case had been established, the Magistrate wrongly declined to treat the direct evidence at its most favourable to the prosecution and resorted to drawing inferences favourable to the defence. The submission is well founded. It was not to the point on the no case application to take into account the evidence of Hennessy insofar as it contradicted or weakened the prosecution case. It did not matter that there was nothing in the evidence of Burman to suggest whether it was the respondent or his brother who initiated the proposal to buy shares, nor that Hennessy had given evidence that he decided to purchase shares as a result of his own enquiries. It was not the Magistrate's function to decide on the no case application that Hennessy's evidence was acceptable and that it went to weaken or contradict the evidence of the other witnesses or stood in the way of an inference that might be drawn from the evidence of the other witnesses. In my view, the primary facts which the evidence was capable of establishing and to which I have already referred were sufficient to enable a tribunal of fact to conclude, first, that on or about 29 September 1987 there was communication between the respondent and his brother by telephone in which the respondent informed his brother of the forthcoming announcement which was likely to increase the market value of Rancoo shares, secondly, that acting on that information as an inducement, John Claudianos caused shares to be purchased on 30 September 1987 and, thirdly, that both John Claudianos and the accused acquired a beneficial interest in some or other of those shares. Proof beyond reasonable doubt of those essential facts, along with the other uncontroversial facts, was sufficient proof for the purposes of establishing a prima facie case of the elements of the three charges.

23. The Magistrate misdirected himself in not observing the distinction drawn in May v. O'Sullivan [1955] HCA 38; (1955) 92 CLR 654 and other cases between the decision to be made on a submission made at the end of the prosecution evidence on the question whether there is a prima facie case upon which the defendant might lawfully be convicted and the decision to be made at the end of all the evidence on the question whether the prosecution case has been made out to the requisite degree, that is to say, beyond reasonable doubt. The first question is a question of law and the second question is a question of fact.

24. The distinction is more readily observed in a criminal trial where the judge makes the first decision and, if the case goes to the jury, the jury makes the second decision. In summary proceedings the magistrate acts as both judge and jury, but only if the question of law is answered in the affirmative, may the second question, the question of fact, be asked at all. In the present case the Magistrate has, according to the terms of his reasons for decision, gone beyond the function of a tribunal of law that was correctly described at the beginning of his judgment in the reference to the passage from Bilick and Starke. In coming to his ultimate decision, the Magistrate did not proceed on the assumption that all the evidence of primary fact, considered at its strongest from the point of view of the case for the prosecution, was accurate nor on the further assumption that all inferences most favourable to the prosecution which are reasonably open are drawn. His use of such phrases as "I find", "further doubt" and "no adequate evidence" indicate that he has taken into account inferences that may be drawn adversely to the prosecution as well as inferences that may be drawn in favour of the prosecution. Most obviously he has taken into account the evidence of Mr. Hennessy as tending to negate any inference that might be drawn in favour of the prosecution and he has given it probative weight in support of a defence case. What commenced as a proper examination of the capacity of the prosecution evidence as a whole to support a conviction became, during the course of the Magistrate's judgment, an examination of the strengths and weaknesses of particular parts of the evidence, and culminated in a finding of fact that the Magistrate was not convinced that the prosecution case had been made out. In the discharge of his function as a tribunal of law, the Magistrate came to act as if he were a tribunal of fact, and that in itself was an error of law.

25. What is to be done? If the case had proceeded after the completion of all the evidence in the case which both prosecution and defence wished to call, the Magistrate might have cast off the mantle of a tribunal of law and assumed that of a tribunal of fact. Once he had reached that stage, he might have gone on to afford an opportunity to counsel on both sides to present argument on such factual material as might be raised by the evidence and in particular what inferences might be drawn in favour of the defence as well as those that might be drawn in favour of the prosecution. Then but only then would he have been in a position to give a decision on the facts and properly discharge his function as a tribunal of fact. In other words, if that stage had been reached it might have been open to the Magistrate as a tribunal of fact to find that he was not convinced beyond reasonable doubt of the guilt of the appellant for the reasons he advanced in the latter part of his judgment.

26. It was properly conceded by the Director of Public Prosecutions that cases sometimes occur in which it will be appropriate for a magistrate at the end of the prosecution evidence to indicate to the parties a provisional view on the facts, whether or not as a matter of law a prima facie case has been made out. That provisional view might be that the prosecution evidence as it stands is unlikely to convince him that as a matter of fact the charge laid has been proved beyond reasonable doubt. But in that sort of situation, so the Director of Public Prosecutions submitted, fairness to the prosecution requires that counsel for the prosecution has the opportunity to address the court on the facts as they might be disclosed on the whole of the evidence and in particular on whether the prosecution has removed any reasonable doubt about the guilt of the defendant. An address directed to those issues may be quite different from an address dealing with the question of law whether that part of the evidence most favourable to the prosecution is capable of supporting the charge. In the present case, according to the submission of the Director of Prosecutions, the Magistrate gave no indication to the prosecution that he intended to dismiss the charges on the facts, hence the prosecution was denied the opportunity to address on the facts and there was, in effect, a denial of natural justice.

27. Three points need to be made at this stage. The first is that the duty to act in accordance with the rules of natural justice is no more or less than the duty to act fairly according to the circumstances: see Kioa & Ors. v. Minister for Immigration and Ethnic Affairs & Anor [1985] HCA 81; (1985) 62 ALR 321. Whether a tribunal has acted fairly depends upon all the circumstances of the case, including the conduct of the party who complains of unfairness. The second point is that for a tribunal to act in a way which a superior court considers unfair does not necessarily mean that the tribunal acts without jurisdiction nor that its decision will be overturned. Thirdly, a superior court will be particularly careful about setting aside an order in the nature of an acquittal because of the rule against double jeopardy.

28. I am obliged to counsel on both sides for their comprehensive submissions and reference to authority on these and related matters. However, it is necessary to refer to only a few of the cases cited.

29. In R v. Dorking Justices; Ex Parte Harrington (1984) 3 WLR 142, a defendant pleaded guilty before magistrates to summary charges. The prosecution applied for an adjournment, the defendant objected, and without enquiring whether the prosecution was able to proceed there and then, the justices refused the adjournment and dismissed the informations. On application for judicial review by way of certiorari, the Divisional Court refused the application, holding that although the justices had acted in breach of natural justice, the dismissal of the charges against the defendant amounted to an acquittal and since the defendant had been in jeopardy, the Divisional Court had no power upon an application for judicial review to quash the acquittals. An appeal to the House of Lords was successful. Lord Roskill at p 148 pointed out that the distinction between actions by justices which are without jurisdiction and thus a nullity and actions which are an erroneous exercise of jurisdiction is often fine. However, the relevant consideration was not the alleged breach of the rules of natural justice but the fact that the decision of the justices to dismiss the information was a nullity. It was a decision which they had no jurisdiction to take in that they declined to adjudicate upon a matter upon which it was their duty to adjudicate. Accordingly it was held that the Divisional Court did have power upon an application by the prosecutor for judicial review to quash an acquittal and remit the matter to the justices for rehearing after a failure or refusal by the justices to adjudicate upon an information by declining to receive the evidence the prosecution wished to present.

30. Ex parte Harrington was of course concerned with the situation in England where the statutory provisions relating to appeals from courts of summary jurisdiction are not identical to the provisions in the Australian Capital Territory. Moreover, it was a case where the justices had declined to hear the prosecution case altogether, and as they had not embarked on a hearing of the case, it was considered that they had no jurisdiction to determine it. On that cautionary note and bearing in mind that the distinction between acting without or in excess of jurisdiction and acting in the wrongful exercise of jurisdiction is notoriously fine, I come to the view that the failure of the Magistrate to hold that a prima facie case had been made out was not a decision made without jurisdiction. I further hold that there was no failure by the Magistrate to adjudicate upon a matter upon which it was his duty to adjudicate.

31. It is relevant to consider the conduct of the prosecution in the proceedings before the Magistrate. Annexed to an affidavit filed in this Court is part of the written submissions of counsel for the prosecution which were placed before the Magistrate at the end of the prosecution evidence and after counsel for the respondent had addressed. The written submissions of counsel for the prosecution rely heavily on the so-called principle in Browne v. Dunn (1894) 6 R 67. As Hunt J. observed in Allied Pastoral Holdings Pty. Ltd. v. Commissioner of Taxation (1983) 1 NSWLR 1, that old case, although often referred to, is much misunderstood. There are two aspects to it. The first is a simple principle of fairness or common sense, for which no judicial authority is really necessary, namely that where a party intends to contradict the evidence of a witness, whether by way of argument or further evidence, then that party should normally give the witness an opportunity of explaining the contradiction, an opportunity which will usually occur in the course of cross-examination. The other aspect of the so-called rule relates to the consequences of a breach of the rule, and these will vary according to the circumstances. What is important for the purposes of the present case is that a consideration of the so-called rule in Browne v. Dunn has nothing to do at all with the question of law raised on a submission of no case to answer, that is, whether the evidence available and the inferences that might be drawn from it are capable of proving the charges laid. At that stage the prosecution is entitled to rely on any favourable inference that might be drawn from the direct evidence. The only relevance that an argument about the rule in Browne v. Dunn could have had in the proceedings before the Magistrate (insofar as it favoured or was relied upon by the defence) related to the consequences of the alleged failure of counsel for the defence to cross-examine some prosecution witnesses on certain matters. Those consequences may have been relevant to the question of fact whether the prosecution case had been proved beyond reasonable doubt but that stage of the proceedings was never reached. Counsel for the prosecution let himself be drawn into an argument over whether the prosecution witnesses should be believed or not, contending that the attack made on their credit in the address by counsel for the respondent did not form part of any challenge to them in cross-examination. Of course, the attack by counsel for the defence on the credit of the prosecution witnesses itself was premature as it did not touch upon the issues that the Magistrate had to decide on the question of whether a prima facie case had been established. Counsel for the prosecution, however, did not take the point that that attack was irrelevant and confusing but rose to the bait proffered by counsel for the defence and argued that the attack on the prosecution witnesses was unfair in the light of the failure to cross-examine them on certain aspects.

32. A party to litigation can hardly complain of being denied a hearing where that party has participated, without objection, in a hearing of sorts or where that party has contributed to the circumstances which have led the tribunal to fall into error: see Vakauta v. Kelly (1989) 87 ALR 633 at p 635.

33. There is a discretion in this Court whether, despite error on the part of the Magistrate, the case should be remitted to him or to another member of the Magistrates Court. This Court should not lightly remit a matter to a Magistrates Court for rehearing or for further hearing when there has been a dismissal of an information, amounting in the context of proceedings without jury, to an acquittal, and when there has been no absence or excess of jurisdiction. I do not doubt that such a step may be taken in appropriate circumstances with the possible eventual result that the setting aside of the acquittal will result in a conviction. The order to review procedure established under Division 3 of Part XI of the Magistrates Court Ordinance 1930 clearly authorises that course. In this Court an order setting aside the dismissal of an information and remitting the matter for further hearing to the then Court of Petty Sessions was made in Howard v. Bondfield (1974) 3 ACTR 62, and a similar order was made in Milner v. Anderson (1982) 42 ACTR 23. The Director of Public Prosecutions supplied a helpful and comprehensive list of relevant authorities in other parts of Australia which shows that the order to review procedure has in many instances resulted in the remittal of the case to a Magistrates Court for rehearing or further hearing after the dismissal of an information. Nonetheless, a court should take into account the rule against double jeopardy when exercising a discretion whether or not to remit. As I have said, the Magistrate was wrong in law in not deciding that there was a case to answer. He was also wrong insofar as he dismissed the informations upon the basis that the prosecution had not proved the charges beyond reasonable doubt. He was accompanied, if not led into error by the way in which the arguments were presented on behalf of both prosecution and defence. In the exercise of discretion I decline to remit the matter to the Magistrate or to the Magistrates Court for rehearing or further hearing. The order nisi of 13 July 1989 is discharged. In accordance with s.159F(5) of the Magistrates Court Ordinance 1930, the appellant is to pay the respondent's costs.